1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JUJRISDICTION
CIVIL APPEAL NO. 20833 OF 2017
ARISING OUT OF SLP (C) NO. 33994 OF 2014
TRILOK SINGH CHAUHAN ... APPELLANT
VERSUS
RAM LAL(DEAD) THR. LRS & ORS ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment dated
26.08.2014 of High Court of Uttarakhand in Civil Revision
No. 32 of 2010 by which judgment High Court has allowed
the Revision and set aside the order passed by the Judge,
Small Causes Court directing the eviction of the
respondent-tenant with recovery of rent and damages. The
landlord aggrieved by the judgment has come up in this
appeal.
2. Brief facts of the case, necessary to be noted for
deciding this appeal are:
The appellant is the owner of Shop No. 46 Adarsh Gram
Chauhan Market, Yatra Bus Station, Rishikesh. The
2
respondent is carrying on business of clothe merchant in
the shop as tenant. A notice dated 07.09.2001 was issued
that respondent has not paid the rent of above-mentioned
shop from December, 2000 till present date. The rate of
rent was claimed as Rs. 1500/- per month. Notice was
given to pay the whole outstanding rent with interest
within one month from the receipt of the notice, failing
which tenancy shall be treated as terminated. After
prescribed period damages at the rate of Rs. 50/- per day
were also claimed. As notice was not replied, the
appellant filed a Small Causes Case No. 32 of 2001 in the
Court of Additional District Judge praying for recovery
of rent with compensation and expenses and any other
relief. The written statement was filed by the respondent
where he denied the rate of rent to be Rs. 1500/- per
month. It was stated that the rate of rent is only Rs.
250/- per month and since October 1994, he is carrying on
business of clothe. It was stated that the plaintiff has
already received the rent for the month of August, 2001
but he did not issue any receipt. Appellant has stopped
to receive the collection of rent from September, 2001.
The respondent forwarded the total rent of Rs. 1250/- for
the period of September, 2001 to January, 2002 at the
3
rate of Rs.250/- per month through money order which was
denied, stating that 'it is denied to accept due to this
amount is less than the actual amount'. Respondent
pleaded that premises is covered by U.P. Act No. 13 of
1972. Trial Court by order dated 13.05.2004 framed ten
issues. An application for amendment was filed by
appellant for adding a prayer 'that the plaintiff may be
given possession of disputed shop which is stated in the
list of property annexed at the end of the plaint after
evicting the respondent from the above shop'. The
amendment application was although rejected by the Trial
Court on 25.4.2007, but the High Court by an order dated
05.08.2008 allowed the amendment application subject to
payment of cost of Rs. 3000/-.
3. High Court also allowed three week's time to
respondent to file amended written statement. Additional
counter statement was filed by the respondent. Trial
Court framed an additional issue on 20.01.2009 which is
to the following effect:
“1. Whether the plaintiff has waived to oppose
for eviction in his notice dated 07.09.2001?
If yes, whether the required relief added by
the plaintiff is barred to the limitation as
stated in the additional counter statement.”
4
4. Parties led their evidences before the Trial Court
including the documentary evidences. Trial Court after
considering the evidences of the parties decided issue
No. 1 in favour of the appellant that rate of rent is
Rs.1500/- per month. Other issues were also decided in
favour of the appellant, consequently, the Trial Court
passed a decree of eviction against the respondent-tenant
with balance amount of payment of rent and damages at the
rate of Rs. 50/- per day.
5. Aggrieved by the above-said judgment, the respondent
filed a Revision before the High Court. The Revision
filed by the respondent was under Section 25 of the
Provincial Small Cause Courts Act, 1887(hereinafter
referred to as 'Act, 1887'). The High Court vide its
judgment allowed the Revision and set aside the judgment
and decree of the Trial Court holding that rate of rent
is Rs. 250/- per month and not Rs. 1500/- per month.
High Court also made observation against the landlord
that the motive of landlord is to secure the possession
back and profit hunting.
5
6. Learned counsel for the appellant submits that the
High Court committed error in upsetting the findings of
fact regarding rate of rent which was held by the Trial
Court as Rs. 1500/- per month but reversed by the High
Court holding it to be Rs. 250/- per month only. It was
further stated that the tenant is in possession of shop
for nineteen years and although tenancy was terminated by
landlord after one month of the service of the notice,
appellant could not get the possession of the shop. The
counsel for the appellant referring to Page No. 88 and 89
of the paper book submits that Trial Court has given
cogent reasons and considered relevant evidence for
recording a finding that rate of rent is Rs. 1500/- per
month which has been set aside by the High Court.
7. Learned counsel appearing for the respondent,
refuting the submission of the learned counsel for the
appellant contends that the Trial Court while decreeing
the suit had not adverted to the additional issues which
were framed by the Trial Court on 20.01.2009. He submits
that Trial Court having not adverted to additional
issues, the Revisional Court has rightly set aside the
judgment and order of the Trial Court and dismissed the
6
suit.
8. We have considered the submissions of the learned
counsel for both the parties and perused the record.
9. The basis of judgment of the High Court in setting
aside the judgment of the Trial Court is the reversal of
the findings regarding rate of rent. As noted above, the
case of the plaintiff was that the rate of rent is Rs.
1500/- per month whereas the case of the tenant was that
rate of rent was Rs. 250/- per month. The High Court
while coming to the conclusion that the rate of rent is
Rs. 250/- per month gave following reasonings:
"I have perused the impugned judgment of the
trial court and find the force in the argument
so submitted by the learned counsel of the
revisionist and instead remanding the case and
lingering this old litigation further between
the parties, I am of the view that no rent due
was payable to the landlord at the time of
issuing the notice dated 07.09.2001.
Relatively, the oral testimony of the landlord
is rebutted by the oral testimony of the
tenant, revealing the fact that the tenanted
premises was taken on the rent to the tune of
Rs. 250/- per month with a payment of premium
of Rs. 1,20,000/- wherefor no receipt was
issued by the landlord to the revisionist. The
fact can not be over sighted that this is in
quite prevalent practice in such matters that
7
the landlord takes the lump sump premium from
the tenant, as has been taken in the instant
case. After taking such a hefty premium, the
rent must not be more than what it has been
stated way back in the year 1994.
No additional reliable testimony has been
brought by the landlord on record to create
the force in his pleadings.”
10. Learned counsel for the appellant has referred to
findings of the Trial Court at Page No. 88 and 89. It is
useful to refer to the discussions made by the Trial
Court deciding the Issue No. 1, which issue was whether
the respondent is tenant in the disputed shop of the
plaintiff for the rate of rent, a sum of Rs. 1500/- per
month? The discussion of the Trial Court at Page No. 88
to 90 is as follows:
“.....In support of the above statement, the
plaintiff produced the Evaluation List for the
period 2004-2009 issued by the Executive
Officer, Nagar Palika, Rishikesh vide document
no. 96Ga. Though, it also clearly proves that
the rent of above disputed property is equaled
to Rs. 1500/- per month. The respondent has
not filed any documentary evidence to oppose
the above fact which it can be proved that the
rent of the above disputed shop is equaled to
Rs. 250/- per month in place of Rs. 1500/-
month.
It clearly proves from the statements of
the above witnesses and the documentary
evidence available on record that any written
agreement regarding the rent of the questioned
property has neither been made between the
8
parties nor filed any rent receipt by the
respondent against the payment of rent though
it is accepted by both the parties that the
plaintiff himself used to come at shop for the
collection of rent and the respondent used to
acknowledge the entry of this payment of rent
in his diary at the shop.
The respondent ought to have proved this
fact that the rent of the above questioned
shop was equaled for sum of Rs. 250/- per
month. The respondent should have produced
the above diary, which was important
documentary evidence and having under the
possession of the respondent and the
signatures of the plaintiff were also taken in
this diary, therefore, the adverse presumption
shall be taken against respondent u/s 114 of
the Evidence Act due to having not to produce
the above diary. This fact cannot be proved by
the respondent; therefore, after analyzing the
above facts, I am of the view that there is
not present any ground to disbelieve the
statement of the plaintiff in which he stated
the rent was equaled for sum of Rs. 1500/- per
month.....”
11. The findings recorded by the Trial Court were based
on evidence brought on record. A reference to Evaluation
List for the period 2004-2009 by the Executive Officer,
Nagar Palika, Rishikesh vide document No. 96Ga was also
mentioned. Trial Court has further drawn an adverse
inference against respondent that he had not produced the
diary in which acknowledgment of the entry of the payment
of rent was made by the appellant. The entire discussion
of the High Court as extracted above, does not refer to
9
above two factors which weighed that the Trial Court in
coming to the conclusion that rate of rent is Rs. 1500/-
per month. We thus are of the clear opinion that High
Court committed an error in setting aside the findings of
the Trial Court on the rate of rent.
12. The High Court was exercising the jurisdiction under
Section 25 of the Act, 1887 which provision is as
follows:
"Sec. 25. Revision of decrees and orders of
Courts of Small Causes:
The High Court, for the purpose of
satisfying itself that a decree or order made
in any case decided by a Court of Small Causes
was according to law, may call for the case
and pass such order with respect thereto as it
thinks fit.”
13. The scope of Section 25 of the Act, 1887 came for
consideration before this Court on several occasions. In
Hari Shankar & Ors. Vs. Rao Girdhari Lal Chowdhury, AIR
1963 SC 698, in Para Nos. 9 and 10, this Court laid down
the following:
“9. The section we are dealing with, is almost
the same as Section 25 of the Provincial Small
Cause Courts Act. That section has been
considered by the High Courts in numerous
10
cases and diverse interpretations have been
given. The powers that it is said to confer
would make a broad spectrum commencing, at one
end, with the view that only substantial
errors of law can be corrected under it, and
ending, at the other, with a power of
interference a little better than what an
appeal gives. It is useless to discuss those
cases in some of which the observations were
probably made under compulsion of certain
unusual facts. It is sufficient to say that we
consider that the most accurate exposition of
the meaning of such sections is that of
Beaumont, C.J. (as he then was) in Bell & Co.
Ltd. v. Waman Hemraj, (1938) 40 Bom LR 125:
(AIR 1938 Bom 223) where the learned Chief
Justice, dealing with Section 25 of the
Provincial Small Cause Courts Act, observed:
"The object of Section 25 is to
enable the High Court to see that there
has been no miscarriage of justice,
that the decision was given according
to law. The section does not enumerate
the cases in which the Court may
interfere in revision, as does Section
115 of the Code of Civil Procedure, and
I certainly do not propose to attempt
an exhaustive definition of the
circumstances which may justify such
interference; but instances which
readily occur to the mind are cases in
which the Court which made the order
had no jurisdiction, or in which the
Court has based its decision on
evidence which should not have been
admitted, or cases where the
unsuccessful party has not been given a
proper opportunity of being heard, or
the burden of proof has been placed on
the wrong shoulders. Wherever the Court
comes to the conclusion that the
unsuccessful party has not had a proper
trial according to law, then the Court
11
can interfere. But, in may opinion, the
Court ought not to interfere merely
because it thinks that possibly the
Judge who heard the case may have
arrived at a conclusion which the High
Court would not have arrived at.”
This observation has our full concurrence.
10. What the learned Chief Justice has said
applies to Section 35 of the Act, with which
we are concerned. Judged from this point of
view, the learned single Judge was not
justified in interfering with a plan finding
of fact and more so, because he himself
proceeded on a wrong assumption.”
14. Another judgment which needs to be noted is judgment
of this Court in Mundri Lal Vs. Sushila Rani(Smt) & Anr.,
(2007) 8 SCC 609. This Court held that jurisdiction
under Section 25 of the Act, 1887 is wider than the
Revisional Jurisdiction under Section 115 C.P.C. But
pure finding of fact based on appreciation of evidence
may not be interfered with, in exercise of jurisdiction
under Section 25 of the Act, 1887. The Court also
explained the circumstances under which, findings can be
interfered with in exercise of jurisdiction under Section
25. There are very limited grounds on which there can be
interference in exercise of jurisdiction under Section
25; they are, when (i) Findings are perverse or
(ii)based on no material or (iii) Findings have been
arrived at upon taking into consideration the
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inadmissible evidences or (iv) Findings have been arrived
at without consideration of relevant evidences.
15. Present is not a case where High Court set aside the
finding of the Trial Court on any of above grounds where
Revisional Court under Section 25 can interfere. High
Court has not even referred to the reasons given by the
Trial Court while coming to the conclusion that the rate
of rent is Rs. 1500/ per month. We thus are of the view
that judgment of the High Court is unsustainable.
16. The submission which has been much pressed by the
learned counsel for the respondent is that Trial Court
has not adverted to the additional issues which were
framed by the Judge, Small Causes Court after allowing
the amendment. The additional issue was as to whether
the plaintiff has waived to oppose for eviction in his
notice dated 07.09.2001 and whether the prayer for relief
added by the plaintiff is barred by limitation. The
notice dated 07.09.2001 brought on record by the
appellant as Annexure P.1. Notice after setting out facts
and claim in last paragraph states as follows:
“Therefore, you are hereby given the notice
13
that you should pay the whole outstanding rent
of my client from December 2000 to till today
at the rate of Rs. 1500/- per month with
interest within one month from the date of
receipt of this notice and the tenancy be
terminated and shall be treated as terminate
after passing above prescribed period. You
shall also be liable to pay the compensation
at the rate of Rs. 50/- per day to my client
after passing the above limitation and the
suit will be filed against you before the
competent court, for which you will be sole
responsible for all the costs and expenses.
You should pay the expenses of notice for sum
of Rs. 500/-. You are informed hereby that
the copy of this notice has been put into
custody at my office for further need. The
second copy of this notice is being forwarded
to you through U.P.C. Post.”
17. The notice clearly contemplated the termination of
the tenancy after expiry of one month. It is relevant to
note that the High Court in its judgment has noted the
arguments of revisionists regarding non-decision of the
additional issues. The High Court noticed the aforesaid
submission in following words:
“Learned counsel of the revisionist has
vehemently argued that none of such added
point of determination has been dealt with by
the court below in the body of the judgment,
much less any finding on either of them....”
18. High Court although noted the above submission but
has not proceeded to examine the above contention or
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recorded any finding in favour of the respondent. Trial
Court had already framed Issue No. 9 to the following
effect: “Whether the plaintiff has any right to evict the
respondent from the disputed property?” The issue was
answered in favour of plaintiff.
19. Although, the above argument was not adverted by the
High Court but since the respondent has raised the
argument before us, it is necessary to consider the
above-said argument. The additional issue as noticed
above is as to whether by notice dated 07.09.2001 the
landlord has waived his right of eviction. From the
averments of notice, as quoted above, it is clear that
tenancy was terminated and landlord contemplated
eviction of the tenant. We thus are of the view that
there is no question of the waiver of eviction. The
prayer of eviction which was formally added by amendment
can not be said to be barred by time since suit was
filed in the year 2001 itself. It was clearly pleaded in
the plaint that in spite of the service of notice
neither payment of balance amount of rent has been made
nor the possession of the shop has been given to the
respondent, even after, terminating the tenancy. In para
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4 of the plaint following was stated:
“4. That the tenancy of the respondent had
been terminated by the plaintiff through above
notice but the above shop of the plaintiff had
neither been vacated nor entrusted the
possession by the respondent. The respondent
did not receive this notice deliberately. The
denial of acceptance of the service of above
notice was recorded on the envelope of above
registered post. It was necessary to file the
above case due to non-compliance of above
notice, do not make the payment of balance
amount of rent and do not delegate the
possession of the shop to the plaintiff by the
respondent even after terminating tenancy.”
20. Thus, the landlord was clearly insisting on
termination of the tenancy and was also mentioning a
cause of action of not handing over of the possession. In
these circumstances, we are of the view that it cannot be
held that there was any waiver of relief of eviction
either on the notice or in the suit. Formal prayer has
already been added in the plaint seeking possession of
shop after eviction which amendment was allowed by the
High Court in its judgment dated 05.08.2008. We are thus
of the view that High Court committed an error in setting
aside the judgment and decree of the Judge, Small Causes
Court.
21. In result, the appeal is allowed. The judgment and
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order of the High Court is set aside and decree of the
Judge, Small Causes Court is restored. The parties shall
bear their own costs.
......................J.
(A. K. SIKRI)
......................J.
(ASHOK BHUSHAN)
NEW DELHI,
December 11, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JUJRISDICTION
CIVIL APPEAL NO. 20833 OF 2017
ARISING OUT OF SLP (C) NO. 33994 OF 2014
TRILOK SINGH CHAUHAN ... APPELLANT
VERSUS
RAM LAL(DEAD) THR. LRS & ORS ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment dated
26.08.2014 of High Court of Uttarakhand in Civil Revision
No. 32 of 2010 by which judgment High Court has allowed
the Revision and set aside the order passed by the Judge,
Small Causes Court directing the eviction of the
respondent-tenant with recovery of rent and damages. The
landlord aggrieved by the judgment has come up in this
appeal.
2. Brief facts of the case, necessary to be noted for
deciding this appeal are:
The appellant is the owner of Shop No. 46 Adarsh Gram
Chauhan Market, Yatra Bus Station, Rishikesh. The
2
respondent is carrying on business of clothe merchant in
the shop as tenant. A notice dated 07.09.2001 was issued
that respondent has not paid the rent of above-mentioned
shop from December, 2000 till present date. The rate of
rent was claimed as Rs. 1500/- per month. Notice was
given to pay the whole outstanding rent with interest
within one month from the receipt of the notice, failing
which tenancy shall be treated as terminated. After
prescribed period damages at the rate of Rs. 50/- per day
were also claimed. As notice was not replied, the
appellant filed a Small Causes Case No. 32 of 2001 in the
Court of Additional District Judge praying for recovery
of rent with compensation and expenses and any other
relief. The written statement was filed by the respondent
where he denied the rate of rent to be Rs. 1500/- per
month. It was stated that the rate of rent is only Rs.
250/- per month and since October 1994, he is carrying on
business of clothe. It was stated that the plaintiff has
already received the rent for the month of August, 2001
but he did not issue any receipt. Appellant has stopped
to receive the collection of rent from September, 2001.
The respondent forwarded the total rent of Rs. 1250/- for
the period of September, 2001 to January, 2002 at the
3
rate of Rs.250/- per month through money order which was
denied, stating that 'it is denied to accept due to this
amount is less than the actual amount'. Respondent
pleaded that premises is covered by U.P. Act No. 13 of
1972. Trial Court by order dated 13.05.2004 framed ten
issues. An application for amendment was filed by
appellant for adding a prayer 'that the plaintiff may be
given possession of disputed shop which is stated in the
list of property annexed at the end of the plaint after
evicting the respondent from the above shop'. The
amendment application was although rejected by the Trial
Court on 25.4.2007, but the High Court by an order dated
05.08.2008 allowed the amendment application subject to
payment of cost of Rs. 3000/-.
3. High Court also allowed three week's time to
respondent to file amended written statement. Additional
counter statement was filed by the respondent. Trial
Court framed an additional issue on 20.01.2009 which is
to the following effect:
“1. Whether the plaintiff has waived to oppose
for eviction in his notice dated 07.09.2001?
If yes, whether the required relief added by
the plaintiff is barred to the limitation as
stated in the additional counter statement.”
4
4. Parties led their evidences before the Trial Court
including the documentary evidences. Trial Court after
considering the evidences of the parties decided issue
No. 1 in favour of the appellant that rate of rent is
Rs.1500/- per month. Other issues were also decided in
favour of the appellant, consequently, the Trial Court
passed a decree of eviction against the respondent-tenant
with balance amount of payment of rent and damages at the
rate of Rs. 50/- per day.
5. Aggrieved by the above-said judgment, the respondent
filed a Revision before the High Court. The Revision
filed by the respondent was under Section 25 of the
Provincial Small Cause Courts Act, 1887(hereinafter
referred to as 'Act, 1887'). The High Court vide its
judgment allowed the Revision and set aside the judgment
and decree of the Trial Court holding that rate of rent
is Rs. 250/- per month and not Rs. 1500/- per month.
High Court also made observation against the landlord
that the motive of landlord is to secure the possession
back and profit hunting.
5
6. Learned counsel for the appellant submits that the
High Court committed error in upsetting the findings of
fact regarding rate of rent which was held by the Trial
Court as Rs. 1500/- per month but reversed by the High
Court holding it to be Rs. 250/- per month only. It was
further stated that the tenant is in possession of shop
for nineteen years and although tenancy was terminated by
landlord after one month of the service of the notice,
appellant could not get the possession of the shop. The
counsel for the appellant referring to Page No. 88 and 89
of the paper book submits that Trial Court has given
cogent reasons and considered relevant evidence for
recording a finding that rate of rent is Rs. 1500/- per
month which has been set aside by the High Court.
7. Learned counsel appearing for the respondent,
refuting the submission of the learned counsel for the
appellant contends that the Trial Court while decreeing
the suit had not adverted to the additional issues which
were framed by the Trial Court on 20.01.2009. He submits
that Trial Court having not adverted to additional
issues, the Revisional Court has rightly set aside the
judgment and order of the Trial Court and dismissed the
6
suit.
8. We have considered the submissions of the learned
counsel for both the parties and perused the record.
9. The basis of judgment of the High Court in setting
aside the judgment of the Trial Court is the reversal of
the findings regarding rate of rent. As noted above, the
case of the plaintiff was that the rate of rent is Rs.
1500/- per month whereas the case of the tenant was that
rate of rent was Rs. 250/- per month. The High Court
while coming to the conclusion that the rate of rent is
Rs. 250/- per month gave following reasonings:
"I have perused the impugned judgment of the
trial court and find the force in the argument
so submitted by the learned counsel of the
revisionist and instead remanding the case and
lingering this old litigation further between
the parties, I am of the view that no rent due
was payable to the landlord at the time of
issuing the notice dated 07.09.2001.
Relatively, the oral testimony of the landlord
is rebutted by the oral testimony of the
tenant, revealing the fact that the tenanted
premises was taken on the rent to the tune of
Rs. 250/- per month with a payment of premium
of Rs. 1,20,000/- wherefor no receipt was
issued by the landlord to the revisionist. The
fact can not be over sighted that this is in
quite prevalent practice in such matters that
7
the landlord takes the lump sump premium from
the tenant, as has been taken in the instant
case. After taking such a hefty premium, the
rent must not be more than what it has been
stated way back in the year 1994.
No additional reliable testimony has been
brought by the landlord on record to create
the force in his pleadings.”
10. Learned counsel for the appellant has referred to
findings of the Trial Court at Page No. 88 and 89. It is
useful to refer to the discussions made by the Trial
Court deciding the Issue No. 1, which issue was whether
the respondent is tenant in the disputed shop of the
plaintiff for the rate of rent, a sum of Rs. 1500/- per
month? The discussion of the Trial Court at Page No. 88
to 90 is as follows:
“.....In support of the above statement, the
plaintiff produced the Evaluation List for the
period 2004-2009 issued by the Executive
Officer, Nagar Palika, Rishikesh vide document
no. 96Ga. Though, it also clearly proves that
the rent of above disputed property is equaled
to Rs. 1500/- per month. The respondent has
not filed any documentary evidence to oppose
the above fact which it can be proved that the
rent of the above disputed shop is equaled to
Rs. 250/- per month in place of Rs. 1500/-
month.
It clearly proves from the statements of
the above witnesses and the documentary
evidence available on record that any written
agreement regarding the rent of the questioned
property has neither been made between the
8
parties nor filed any rent receipt by the
respondent against the payment of rent though
it is accepted by both the parties that the
plaintiff himself used to come at shop for the
collection of rent and the respondent used to
acknowledge the entry of this payment of rent
in his diary at the shop.
The respondent ought to have proved this
fact that the rent of the above questioned
shop was equaled for sum of Rs. 250/- per
month. The respondent should have produced
the above diary, which was important
documentary evidence and having under the
possession of the respondent and the
signatures of the plaintiff were also taken in
this diary, therefore, the adverse presumption
shall be taken against respondent u/s 114 of
the Evidence Act due to having not to produce
the above diary. This fact cannot be proved by
the respondent; therefore, after analyzing the
above facts, I am of the view that there is
not present any ground to disbelieve the
statement of the plaintiff in which he stated
the rent was equaled for sum of Rs. 1500/- per
month.....”
11. The findings recorded by the Trial Court were based
on evidence brought on record. A reference to Evaluation
List for the period 2004-2009 by the Executive Officer,
Nagar Palika, Rishikesh vide document No. 96Ga was also
mentioned. Trial Court has further drawn an adverse
inference against respondent that he had not produced the
diary in which acknowledgment of the entry of the payment
of rent was made by the appellant. The entire discussion
of the High Court as extracted above, does not refer to
9
above two factors which weighed that the Trial Court in
coming to the conclusion that rate of rent is Rs. 1500/-
per month. We thus are of the clear opinion that High
Court committed an error in setting aside the findings of
the Trial Court on the rate of rent.
12. The High Court was exercising the jurisdiction under
Section 25 of the Act, 1887 which provision is as
follows:
"Sec. 25. Revision of decrees and orders of
Courts of Small Causes:
The High Court, for the purpose of
satisfying itself that a decree or order made
in any case decided by a Court of Small Causes
was according to law, may call for the case
and pass such order with respect thereto as it
thinks fit.”
13. The scope of Section 25 of the Act, 1887 came for
consideration before this Court on several occasions. In
Hari Shankar & Ors. Vs. Rao Girdhari Lal Chowdhury, AIR
1963 SC 698, in Para Nos. 9 and 10, this Court laid down
the following:
“9. The section we are dealing with, is almost
the same as Section 25 of the Provincial Small
Cause Courts Act. That section has been
considered by the High Courts in numerous
10
cases and diverse interpretations have been
given. The powers that it is said to confer
would make a broad spectrum commencing, at one
end, with the view that only substantial
errors of law can be corrected under it, and
ending, at the other, with a power of
interference a little better than what an
appeal gives. It is useless to discuss those
cases in some of which the observations were
probably made under compulsion of certain
unusual facts. It is sufficient to say that we
consider that the most accurate exposition of
the meaning of such sections is that of
Beaumont, C.J. (as he then was) in Bell & Co.
Ltd. v. Waman Hemraj, (1938) 40 Bom LR 125:
(AIR 1938 Bom 223) where the learned Chief
Justice, dealing with Section 25 of the
Provincial Small Cause Courts Act, observed:
"The object of Section 25 is to
enable the High Court to see that there
has been no miscarriage of justice,
that the decision was given according
to law. The section does not enumerate
the cases in which the Court may
interfere in revision, as does Section
115 of the Code of Civil Procedure, and
I certainly do not propose to attempt
an exhaustive definition of the
circumstances which may justify such
interference; but instances which
readily occur to the mind are cases in
which the Court which made the order
had no jurisdiction, or in which the
Court has based its decision on
evidence which should not have been
admitted, or cases where the
unsuccessful party has not been given a
proper opportunity of being heard, or
the burden of proof has been placed on
the wrong shoulders. Wherever the Court
comes to the conclusion that the
unsuccessful party has not had a proper
trial according to law, then the Court
11
can interfere. But, in may opinion, the
Court ought not to interfere merely
because it thinks that possibly the
Judge who heard the case may have
arrived at a conclusion which the High
Court would not have arrived at.”
This observation has our full concurrence.
10. What the learned Chief Justice has said
applies to Section 35 of the Act, with which
we are concerned. Judged from this point of
view, the learned single Judge was not
justified in interfering with a plan finding
of fact and more so, because he himself
proceeded on a wrong assumption.”
14. Another judgment which needs to be noted is judgment
of this Court in Mundri Lal Vs. Sushila Rani(Smt) & Anr.,
(2007) 8 SCC 609. This Court held that jurisdiction
under Section 25 of the Act, 1887 is wider than the
Revisional Jurisdiction under Section 115 C.P.C. But
pure finding of fact based on appreciation of evidence
may not be interfered with, in exercise of jurisdiction
under Section 25 of the Act, 1887. The Court also
explained the circumstances under which, findings can be
interfered with in exercise of jurisdiction under Section
25. There are very limited grounds on which there can be
interference in exercise of jurisdiction under Section
25; they are, when (i) Findings are perverse or
(ii)based on no material or (iii) Findings have been
arrived at upon taking into consideration the
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inadmissible evidences or (iv) Findings have been arrived
at without consideration of relevant evidences.
15. Present is not a case where High Court set aside the
finding of the Trial Court on any of above grounds where
Revisional Court under Section 25 can interfere. High
Court has not even referred to the reasons given by the
Trial Court while coming to the conclusion that the rate
of rent is Rs. 1500/ per month. We thus are of the view
that judgment of the High Court is unsustainable.
16. The submission which has been much pressed by the
learned counsel for the respondent is that Trial Court
has not adverted to the additional issues which were
framed by the Judge, Small Causes Court after allowing
the amendment. The additional issue was as to whether
the plaintiff has waived to oppose for eviction in his
notice dated 07.09.2001 and whether the prayer for relief
added by the plaintiff is barred by limitation. The
notice dated 07.09.2001 brought on record by the
appellant as Annexure P.1. Notice after setting out facts
and claim in last paragraph states as follows:
“Therefore, you are hereby given the notice
13
that you should pay the whole outstanding rent
of my client from December 2000 to till today
at the rate of Rs. 1500/- per month with
interest within one month from the date of
receipt of this notice and the tenancy be
terminated and shall be treated as terminate
after passing above prescribed period. You
shall also be liable to pay the compensation
at the rate of Rs. 50/- per day to my client
after passing the above limitation and the
suit will be filed against you before the
competent court, for which you will be sole
responsible for all the costs and expenses.
You should pay the expenses of notice for sum
of Rs. 500/-. You are informed hereby that
the copy of this notice has been put into
custody at my office for further need. The
second copy of this notice is being forwarded
to you through U.P.C. Post.”
17. The notice clearly contemplated the termination of
the tenancy after expiry of one month. It is relevant to
note that the High Court in its judgment has noted the
arguments of revisionists regarding non-decision of the
additional issues. The High Court noticed the aforesaid
submission in following words:
“Learned counsel of the revisionist has
vehemently argued that none of such added
point of determination has been dealt with by
the court below in the body of the judgment,
much less any finding on either of them....”
18. High Court although noted the above submission but
has not proceeded to examine the above contention or
14
recorded any finding in favour of the respondent. Trial
Court had already framed Issue No. 9 to the following
effect: “Whether the plaintiff has any right to evict the
respondent from the disputed property?” The issue was
answered in favour of plaintiff.
19. Although, the above argument was not adverted by the
High Court but since the respondent has raised the
argument before us, it is necessary to consider the
above-said argument. The additional issue as noticed
above is as to whether by notice dated 07.09.2001 the
landlord has waived his right of eviction. From the
averments of notice, as quoted above, it is clear that
tenancy was terminated and landlord contemplated
eviction of the tenant. We thus are of the view that
there is no question of the waiver of eviction. The
prayer of eviction which was formally added by amendment
can not be said to be barred by time since suit was
filed in the year 2001 itself. It was clearly pleaded in
the plaint that in spite of the service of notice
neither payment of balance amount of rent has been made
nor the possession of the shop has been given to the
respondent, even after, terminating the tenancy. In para
15
4 of the plaint following was stated:
“4. That the tenancy of the respondent had
been terminated by the plaintiff through above
notice but the above shop of the plaintiff had
neither been vacated nor entrusted the
possession by the respondent. The respondent
did not receive this notice deliberately. The
denial of acceptance of the service of above
notice was recorded on the envelope of above
registered post. It was necessary to file the
above case due to non-compliance of above
notice, do not make the payment of balance
amount of rent and do not delegate the
possession of the shop to the plaintiff by the
respondent even after terminating tenancy.”
20. Thus, the landlord was clearly insisting on
termination of the tenancy and was also mentioning a
cause of action of not handing over of the possession. In
these circumstances, we are of the view that it cannot be
held that there was any waiver of relief of eviction
either on the notice or in the suit. Formal prayer has
already been added in the plaint seeking possession of
shop after eviction which amendment was allowed by the
High Court in its judgment dated 05.08.2008. We are thus
of the view that High Court committed an error in setting
aside the judgment and decree of the Judge, Small Causes
Court.
21. In result, the appeal is allowed. The judgment and
16
order of the High Court is set aside and decree of the
Judge, Small Causes Court is restored. The parties shall
bear their own costs.
......................J.
(A. K. SIKRI)
......................J.
(ASHOK BHUSHAN)
NEW DELHI,
December 11, 2017
